April 2, 2007

I see Justice Kennedy voted with the liberals on the global warming case. I'm on vacation, but I'm going to write about that case for you anyway. Because I care... and because we're just hanging out here at The Flightpath:

31 comments:

For the lay person, wasn't this case about the EPA's responsibility to regulate CO2 as a pollutant? While there is apparently some language in the opinion about the danger of global warming, this case is ultimately about CO2 falling under the EPA's regulatory authority, no?

Ann - has the court's opinion succeeded in changing your view that the plaintiffs have no standing?

Roger - that's the plaintiff's framing, and that's what the litigation in the lower courts was about, but in my view, at least as presented to the Supreme Court, this case is about threshold doctrines (specifically, standing, and more specifically than that, redressability, although I concede that other parts of the standing inquiry have occupied more air time) and deference to agency decisions. In other words, it's about Lujan, and if it's not about Lujan, it's about Chevron. As I said the other week, "if the opinion the court even mentions climate science it will have been wrongly-decided." Apropos, I agree entirely with the Chief Justice's dissent.

rogera, this case was about a whole lot more than EPA's responsibility under the Clean Air Act. It was also about Massachusetts's standing to sue the EPA at all. The case goes to the very power of the Federal courts to hear what amounts to a poitical dispute. Many observers, and I think Prof. Althouse as well, believe that Mass. did not have standing to sue. The Consitution gives power to the various Federal courts to hear "cases and controversies" which has been interpreted to mean that a party to one of these must suffer a distinct injury different from the harm caused to every other party or person by the conduct alleged to have caused the harm. In the EPA case, the EPA's apparent failure to act affects Mass. the same as its individual citizens and those of every other state. Mass. therefore cannot show an individualized harm. The remedy under our system is supposed to be to petition Congress to hit the EPA over the head, and/or to elect a different President to force the EPA to do things differently. What the Supreme Court has done is provide an avenue to use the Federal courts to hear political disputes. All in all a very bad day for constitutional law.

Simon--Thanks. Given this decision, doesnt this mean now that the EPA could regulate any number of potential pollutants, some of which are man-made and some nturally occuring (eg second hand tobacco smoke and methane) that can be shown to be harmful? Should I be worried about the law of unintended consequences?

Roger:"Given this decision, doesnt this mean now that the EPA could regulate any number of potential pollutants, some of which are man-made and some nturally occuring (eg second hand tobacco smoke and methane) that can be shown to be harmful?"

Not directly. Although the court adopts a broad definition of "air pollutant," the text it applies that definition of is confined ("[t]he scope of our review of the merits of the statutory issues is narrow," slip op. at 24) to "§202(a)(1) [which] provides that EPA 'shall by regulation prescribe ... standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in [the Administrator's] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare," slip op. at 25 (emphasis added). So the holding is fairly narrow, but to the extent that the construction of "air pollutant" is holding rather than dicta, it could be applied to other cases.

To be honest, though, I'm far less animated about the decision on the merits than the decision on standing. As Richard observed above: "The case goes to the very power of the Federal courts to hear what amounts to a poitical dispute. ... The remedy under our system is supposed to be to petition Congress to hit the EPA over the head, and/or to elect a different President to force the EPA to do things differently." I think that's exactly right. The correct remedy here is to elect a different President, or to elect a Congress that will clarify the statute in a way that makes clear that EPA can and should regulate CO2 emissions. Ordinarily, I would dismiss this as public law litigation, an attempt to re-fight a battle that was lost at the ballot box. Inexplicably, though, this is a fight that they won at the ballot box - there is no reason whatsoever why a Congress sympathetic to the litigants in this case, which we now have, couldn't settle the issue with a single-sentence amendment to the Clean Air Act. It could have been passed in the first hundred minutes of Pelosi's vaunted "first hundred hours," but no. And why is that? I have to be honest: I suspect it's because if they were honest about it, even legal liberals would admit that this litigation isn't really about global warming. They get that it's about threshold doctrines. It's about federal courts, and who can use them to accomplish what. And it seems to be that that's the real injury done today, not the decision on the merits.

Soon the liberals will find a way to regulate Oxygen. Then the Government will get to decide who lives and dies. How silly.

The mantra of the democrats this year has been higher taxes, more regulation, and defeat in Iraq. These ugly policies can't last for long. Did the American people really vote for that last November??? The Democrats pulled a fast one.

WAIT! She asked you to wait. For GOd's sake, can't any of you follow a simple instruction or request? Noooo, you're all like a bunch of 1st graders who think the first person to raise their hand gets a piece of candy.

The only thing I care about is a report on that Austin Whole Foods. We need to find out the mirth and girth, the dress size of the Texans shopping at Whole Foods---which purports to be a health food store.

Are Texans, on the whole, fatter or thinner than the rest of the Country? I'd like an answer to that, and I'll be happy.

Fact A: Anal sex represents a greater risk of STD transmission, particularly of HIV, than vagina sex does, due to the heightened risk of tearing and semen/blood contact.

Fact B: The CDC is charged with preventing the spread of infectious diseases.

So my question -- now that the courts have apparently decided that states can use the courts to force the federal government to enforce policies not enacted directly by Congress, does this mean that some socially conservative state, such as Texas, could sue the CDC to force it to ban sodomy in the United States?

Maxine: you can't judge Texas by Austin, unless you are talking about weather.

You can't even do that. When it comes to climate, Austin is the most God awful, miserable place I've ever been to and I've been to the Amazon (but not Houston.) By comparison, Dallas was downright pleasant (though miserable in every other regard.)

House, I don't have time to "wait it out" Unlike you, who is waiting to pounce on anything Ann says, I have drawn my own conclusion, based on my 20+ years of experience in the environmental field. I can't speak to the constitutional issues and whether Mass should have standing, but knowing how EPA promulgates regulations, I can say its a lousy decision as a practical matter.

Stevn R with your 20 years in the enviromental field....lousy decision "how"?.

I don't pounce. Liberals don't pounce. Cats pounce.

My post (above) was wondering when cotton was spelled with an "e" and of course Revenant's silliness with the CDC and Texas condoms, and if this is how you spend your time waiting for Ann to write.

I don't pounce on Ann. Actually I admire her ability to broaden and maintain diverse interest in a blog of this nature.

Of course, being a liberal, I enjoy reading ideas and fresh thoughts from all sides. That is what a liberal does. We, however, don't pounce. I mean if the prey is flat on its back, wings broken, brain dead, and just full of silliness, there is no need to rush.

how? I was involved in the development of a regulation mandated by the CAA amendments of 1990, specifically targeted to reduce emissions of a hazardous air pollutant, lead, from the secondary lead industry. In just about every way, it was vastly simpler than this process will be and it took seven years. Requirements mandated by prior regulations and economic concerns made the new rule (as finally passed) to be of little impact.

At every step, interest groups laid in wait with lawyers (like the ones my comapny hired). Its a slow inefficient process and the science involved imprecise. EPA sets standards for new vehicles and its takes decades to clear out the fleet.

Steve R...now this is fascinating. So 17years ago you participated in the writing of (one) regulation involved CAA? Did I get that right?

You point out (I didn't say make the point) that it takes decades "to clear out the fleet". Hmmm. Well it has been decades. How are we doing?

Was it section 218 dealing with non-leaded gas? Perhaps in the loftier section 211 dealing with fleets?

By your admission you wrote regs that were without effect. So what does anyone do? State or individual. Regulations are on the books but are not enforced and even ignored for current political reasons.

We petition our representatives but for the past 7 years they have barely been able to scratch their asses so where do we go? the Courts. Good answer....and the issues presented were sufficient so the court said "we agree".

All I saying House is the process is slow and inefficient. My experience, far broader than your take on my specific role in one regulation, makes me skeptical. How long will it take for carbon based vehicles to go away, if in 10 years EPA mandates that new vehicles get 100 mpg? California, with tbe worst air in the country was (is) stuck with millions of older highly polluting vehicles, just waiting for them to go out of service.

I really don't care that this issue will be great for picking at one side or the other. I doubt you've ever sat in meetings at Research Triangle Park as this process unfolds but as great a victory (meaning defeat for Bush) this decision can be seen as, don't delude yourself into thinking anything good will come out of it.